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The First California Preliminary Alternatives Assessment Report Under The SCP Regulation Gets The First Notice of Deficiency

On August 30, 2019, the California Department of Toxic Substances Control (DTSC) issued a Notice of Deficiency to the Preliminary (Stage 1) Alternatives Analysis Report on Methylene Chloride-Containing Paint or Varnish Removers (the PAA Report) submitted by the Halogenated Solvents Industry Alliance (HSIA). The HSIA submitted the report, on behalf of certain companies that manufacture methylene chloride-containing paint removers, pursuant to the California Safe Consumer Products (SCP) Regulation. According to DTSC’s Notice of Deficiency, the HSIA must submit a revised report by October 29, 2019.

The PAA Report is the first alternatives assessment report submitted since the SCP regulations were promulgated in 2013 (codified in Title 22 of the California Code of Regulations starting at Section 69501). The program implements California’s Green Chemistry law passed in 2008 (AB 1879), which in turn implements one of the goals of the California Green Chemistry Initiative – the acceleration of the “quest for safer consumer products.” The SCP program has four main components: (1) identification of Candidate Chemicals, i.e., chemicals of concern; (2) identification of Priority Products, i.e., specific consumer product categories containing one or more specific Candidate Chemicals; (3) alternatives analysis assessments of “safer” alternatives to such chemicals in Priority Products; and (4) regulatory responses based on the outcome of those assessments, which can range from labeling requirements to outright product bans.

Since the program became effective in 2013, a handful of Priority Products have been identified. On January 1, 2019, DTSC identified paint or varnish strippers containing methylene chloride as Priority Products. That identification, in turn, triggered the obligation of “Responsible Entities” for the Priority Product – defined as manufacturers, importers, retailers and assemblers – to submit Priority Product Notifications to DTSC.

The formal identification of a Priority Product also triggers the obligation to conduct an alternatives assessment unless the Responsible Entity submits a subsequent notification to DTSC, in compliance with the regulations, that excuses the obligation. The alternatives assessment analysis is a complex and resource-intensive one, requiring the analysis of numerous life cycle-oriented considerations. Although Responsible Entities include retailers and assemblers, the primary burden for conducting alternatives assessments is placed on manufacturers and importers of a Priority Product.

The alternatives assessment evaluation is a two-part process. A “Preliminary” or “Stage 1” Alternatives Assessment Report is the first submission, due 180 days after the formal identification of a Priority Product unless DTSC grants an extension. The Final Alternatives Assessment Report is due 12 months after DTSC approves the Preliminary Alternatives Assessment Report.

Here, manufacturers of methylene chloride-containing paint and varnish removers, through the HSIA, jointly prepared and submitted the PAA Report on July 1, 2019. Under the regulations, within 60 days of receipt DTSC was required to issue either a Notice of Compliance, a Notice of Deficiency, a Notice of Disapproval or a Notice of Ongoing Review.

DTSC’s August 30, 2019 Notice of Deficiency described a number of purported problems with the PAA Report. Among the alleged “overarching issues”: failure include all the information identified in Section 69505.7(a)(1) (a long list of required information); lack of supporting information; over-reliance on qualitative, rather than quantitative, information; and internal inconsistencies. Notably, one of the alleged deficiencies also included a failure to address misuse/improper disposal of the products.

DTSC’s Notice of Deficiency establishes October 29, 2019 as the deadline to submit a revised PAA Report. However, a Responsible Entity has another alternative at its disposal: trigger the dispute resolution process outlined in Sections 69507.1 and 69507.2 of the SCP regulations within 30 days of a DTSC decision. Indeed, to preserve the right of judicial review of any deficiencies in DTSC’s process, a Responsible Entity must first utilize the regulatory dispute resolution procedures, or it “waives its right to further contest the disputed issue.” Once a Responsible Entity triggers the dispute resolution provisions, “a requirement imposed by [DTSC] on a responsible entity…is stayed during the pendency of an administrative dispute concerning the requirement.” Thus, invoking the dispute resolution process will, if nothing else, at least buy time.

 

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product regulation. For knowledgeable advice and in-depth analysis on your chemical regulatory compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

 

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Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.